All posts by Nicholas Stephanopoulos

“Voting Rights Federalism”

Ruth Greenwood and I have posted this article on state voting rights acts (SVRAs), which will be published in a symposium issue of the Emory Law Journal. Here’s the abstract:

It’s well-known that the federal Voting Rights Act is reeling. The Supreme Court nullified one of its two central provisions in 2013. The Court has also repeatedly weakened the bite of the statute’s other key section. Less familiar, though, is the recent rise of state voting rights acts (SVRAs): state-level enactments that provide more protection against racial discrimination in voting than does federal law. Seven states have passed SVRAs so far—four since 2018. Several more states are currently drafting SVRAs. Yet even though these measures are the most promising development in the voting rights field in decades, they have attracted little scholarly attention. They have been the subject of only a handful of political science studies and no sustained legal analysis at all.

In this Article, then, we provide the first descriptive, constitutional, and policy assessment of SVRAs. We first taxonomize SVRAs. That is, we catalogue how they diverge from, and build on, federal protections against racial vote denial, racial vote dilution, and retrogression. Second, we show that SVRAs are constitutional in that they don’t violate any branch of equal protection doctrine. They don’t constitute (or compel) racial gerrymandering, nor do they classify individuals on the basis of race, nor are they motivated by invidious racial purposes. Finally, while existing SVRAs are quite potent, we present an array of proposals that would make them even sharper swords against racial discrimination in voting. One suggestion is for SVRAs simply to mandate that localities switch to less discriminatory electoral laws—not to rely on costly, time-consuming, piecemeal litigation. Another idea is for SVRAs to allow each plaintiff to specify the benchmark relative to which racial vote dilution should be measured—not to stay mute on the critical issue of baselines.

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The South Carolina Racial Gerrymandering Case

Earlier this week, the Supreme Court agreed to hear a racial gerrymandering case involving South Carolina’s First Congressional District. At first glance, the issue presented in the case is fairly conventional: Did race or partisan advantage predominantly explain the First District’s design? This is the same race-or-party question the Court first confronted in Easley v. Cromartie in 2001 and also addressed in Cooper v. Harris in 2017. But there are a couple interesting wrinkles in the South Carolina case that make it more than a rerun of Easley and Cooper.

First, the First District is a “stripped” rather than a “packed” district—a district whose African American population is allegedly artificially low because of the race-based removal of Black voters. The Supreme Court has never previously considered a racial gerrymandering challenge to a stripped district. (Though lower courts have—e.g., in this successful suit against both packed and stripped Jacksonville city council districts.) Second, the plaintiffs in the South Carolina case relied in part on sets of randomly generated race-blind district maps. These maps demonstrated that, without race as a factor, the First District essentially never had as low of a Black population as it did in the enacted plan. These sorts of computer simulations have featured prominently in partisan gerrymandering cases. They’re also at the core of Alabama’s argument in Allen v. Milligan that a “race-blind baseline” should be used in cases under Section 2 of the Voting Rights Act. But until now, computer-created comparator maps haven’t appeared in any racial gerrymandering case before the Supreme Court. (Though, again, they have shown up in lower-court racial gerrymandering cases, such as the Jacksonville litigation.)

Computer simulations are especially useful in this context because the underlying issue is one of intent: Did race or party predominate in the construction of a given district? If the challenged district’s racial composition is different from that of most or all corresponding districts in the simulations, that’s powerful evidence that race predominated. If race hadn’t predominated, the challenged district’s racial composition wouldn’t be so different from that of its analogues in the simulations. Simulations also satisfy the “alternative map” requirement that the Supreme Court has inconsistently imposed on racial gerrymandering plaintiffs. This is a requirement that plaintiffs show that another map could have been drawn without race predominating and complying with all of a jurisdiction’s non-racial criteria. All of the maps produced by properly conducted simulations are such maps. So simulations yield not just one but thousands of valid alternative maps.

In contrast, simulations make much less sense in the Section 2 context. That’s because Section 2 is all about effect: whether the electoral influence of a minority group has, in fact, been diluted. Because intent is irrelevant in a typical racial vote dilution case, it’s illogical to try to establish it by comparing the enacted plan to comparator sets of randomly generated race-blind maps. True, a race-blind baseline could be used not just to shed light on intent but also to measure (a certain conception of) effect. But decades of case law make clear that the benchmark for Section 2 is race-conscious, not race-blind: a reasonable alternative map drawn with consideration—not ignorance—of race. So again, there’s no role for race-blind simulations in this kind of litigation.

At the Allen oral argument back in October, several Justices seemed to grasp these points about Section 2. Having the South Carolina racial gerrymandering case on their docket, too, may help them to see that simulations are valuable tools in some but not all suits about race and redistricting.

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Stopping Gerrymandering by Respecting Territorial Communities

As Rick noted, the Alaska Supreme Court held on Friday that “partisan gerrymandering is unconstitutional under the Alaska Constitution,” specifically, its equality guarantee in Article I, Section 1. This ruling is notable in at least two respects. First, it’s based on a general constitutional provision—“equal rights, opportunities, and protection under the law”—rather than a specific prohibition of partisan gerrymandering. In Rucho v. Common Cause, of course, the U.S. Supreme Court decided that partisan gerrymandering is nonjusticiable under the general provisions of the U.S. Constitution. The Alaska Supreme Court explicitly disagreed with the U.S. Supreme Court, declining “to follow the [U.S.] Supreme Court’s lead.”

Second, the Alaska Supreme Court operationalized its partisan gerrymandering ban using the “territorial community” test that I proposed in this 2012 article. As the court put it, “[t]o allow for meaningful review in redistricting cases, we formally adopt Professor Nicholas O. Stephanopoulos’s ‘community of interest’ definition,” under which a territorial community “is (1) a geographically defined group of people who (2) share similar social, cultural, and economic interests and (3) believe they are part of the same coherent entity.” The territorial community test calls for the invalidation of districts that unnecessarily disrupt communities by fusing, fragmenting, or otherwise subverting them. Using this test, the court struck down a state senate district that unnecessarily divided the Eagle River community in Anchorage, instead combining part of Eagle River with the distinct community of Muldoon.

By operationalizing its partisan gerrymandering ban using the territorial community test, the Alaska Supreme Court swam against the tide of recent state court rulings in this area. Most of these rulings have focused directly on partisan intent and partisan effect, considered statewide and demonstrated primarily through empirical evidence. The Alaska Supreme Court’s decision most reminded me of the Pennsylvania Supreme Court’s 2018 decision nullifying the state’s congressional plan because of its blatant disregard for traditional redistricting criteria. Both of these decisions emphasized noncompliance with nonpartisan requirements and didn’t fixate on empirical evidence of partisanship. This approach is appealing because it demands less empirical sophistication on the part of courts, it builds on precedent (especially in Alaska), and it doesn’t force courts to accuse other institutional actors of partisanship. On the other hand, adept gerrymanderers may be able to achieve their partisan aims while still designing maps that reasonably satisfy criteria such as compactness, respect for political subdivisions, and respect for territorial communities. If and when courts using this approach are confronted by such maps, they may have to complement their analysis with empirical evidence of partisanship. Otherwise these courts’ efforts to stop gerrymandering may prove too easy to circumvent.

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Census to Release Data on Differential Privacy Method

In response to a FOIA lawsuit brought by Harvard Law School’s Election Law Clinic on behalf of Columbia political scientist Justin Phillips, the Census Bureau announced today that it will release the data needed to assess the performance of the differential privacy method that was used to protect privacy in the 2020 Census.

The U.S. Census Bureau announced today that it will release files that the Election Law Clinic at Harvard Law School had sought through litigation in order to evaluate possible bias in the 2020 Census. 

The Election Law Clinic and Selendy Gay Elsberg PLLC represent Dr. Justin Phillips, a political scientist at Columbia University, in litigation to enforce a Freedom of Information Act (FOIA) request for the files. These data may reveal unintended distortions in 2020 Census data, which are used to distribute political power and resources and to conduct research across disciplines.   

Scholars have contended that the privacy protections adopted by the Census Bureau for the 2020 Census may have systematically skewed the data used for redistricting in a way that underrepresents people of color. In order to determine whether that skew exists, and if so, how large that bias is, Dr. Phillips had filed a FOIA request with the Bureau on July 7, 2022. 

Dr. Phillips’s FOIA request sought two files (called the “noisy measurements files”) that would enable outside observers to determine whether the published data from the 2020 Census are systematically skewed. The first is a demonstration file based on 2010 Census data. The second is the actual noisy measurement file used to generate the final 2020 Census data. 

Dr. Phillips sued the Census Bureau to enforce his FOIA request on October 31, 2022. On December 1, 2022, the Bureau denied Dr. Phillips’ request for the files, contending that the 2010 file had been deleted, and the 2020 file was exempt from release under FOIA. 

Reversing course, in January 2023, the Bureau announced it would recreate and publish the 2010 noisy measurement file. The 2010 file is due to be released on April 3. The Bureau further announced today that it will release the 2020 file, with a schedule for release still to be set. View the full statement here.

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“Non-Retrogression Without Law”

This is a co-authored post by Eric McGhee, Chris Warshaw, and me about our new article, “Non-Retrogression Without Law,” on the consequences of Shelby County v. Holder in the redistricting context:

            A decade ago, the Supreme Court held in Shelby County v. Holder that a crucial provision of the Voting Rights Act was unconstitutional. For nearly half a century, Section 5 of the VRA had barred certain, mostly southern states from changing their election laws unless they first received permission (“preclearance”) from federal authorities. Preclearance was granted only if covered states could show that their proposed changes wouldn’t result in a reduction (“retrogression”) of the electoral influence of minority voters. In Shelby County, the Court ruled that the formula used to determine which states were subject to Section 5 was invalid because it relied on supposedly obsolete data. Since the Court’s decision, Section 5, once the “crown jewel” of the civil rights movement, has been defunct.

            With Shelby County’s tenth anniversary approaching, you might think we’d know by now the case’s effects on American democracy. And with respect to laws about voting itself, we do have a reasonable understanding. Over the last ten years, states formerly covered by Section 5 have enacted many voting restrictions—photo ID requirements for voting, cutbacks to early voting, closures of polling places, and the like—that would never have been precleared had Section 5 still been in force. Preliminarily, though, these measures don’t seem to have disproportionately harmed minority voters. Several studies suggest that the gap between minority and white political participation hasn’t widened more in formerly covered states than in formerly uncovered states since Shelby County.

            But the policies that led to the most preclearance objections in the years before the Court’s decision weren’t voting restrictions. They were redrawn district maps. And prior to our forthcoming article, no information was available on Shelby County’s implications for redistricting. The reason is that Shelby County was handed down in 2013—after states had already designed their districts for the 2010s. In the wake of the Court’s ruling, states released from Section 5’s preclearance regime simply kept their existing districts for the rest of the decade. They didn’t update their districts until the 2020 Census was completed and it was time to draw new lines for the 2020s. The recently concluded 2022 election was therefore the first to be held under maps crafted in a world without Section 5.

            In our article, we analyze the new (2020s) and old (2010s) congressional, state senate, and state house plans of all fifty states. For each plan, we determine its number of “minority ability districts”—districts where minority voters are able to elect their preferred candidates. Minority ability districts often are, but don’t necessarily have to be, districts where minority voters comprise an outright majority of the population. Back when Section 5 was still in effect, it banned covered states from reducing the number of minority ability districts in any of their maps.

            There are plenty of reasons to expect Shelby County to have hurt minority representation. But we find relatively little retrogression in the latest round of redistricting. At the congressional level, eight of nine formerly covered states (all but Texas) created as many minority ability districts for the 2020s as they previously had for the 2010s. At the state legislative level, there was somewhat more retrogression: a total of five new maps in formerly covered states with fewer minority ability districts than their predecessors. But this decline was more than offset by the increase in minority ability districts elsewhere. In sum, across all formerly covered states, the volume of minority ability districts in state legislatures actually grew by five. Most of this growth was in so-called “crossover” districts where minority voters are able to elect their candidates of choice with some support from white voters.

            Nor did formerly covered states perform worse in terms of minority representation than did states that weren’t subject to Section 5’s special rules. Again, in the former group, the aggregate number of minority ability districts inched up in the last redistricting cycle. But in states that were mostly or wholly unaffected by Shelby County, the total volume of minority ability districts fell by fourteen. So our conclusion about retrogression in formerly covered states—that not much of it occurred—is the same whether our calculations are absolute or relative to the baseline of formerly uncovered states.

            Why didn’t Section 5’s demise have more dramatic consequences? One likely answer is the status quo bias of many line-drawers. Pressured by incumbents who are happy with their districts, mapmakers often minimize changes to existing boundaries. This aversion to major disruption was evident in our data. In fully two-thirds of the 2020s plans we evaluated, the number of minority ability districts was exactly the same as in the 2010s. Most line-drawers thus sought neither to improve nor to worsen minority representation—but rather to avoid altering it in any way.

            Another explanation for our results is that retrogression is typically unnecessary for states to achieve their partisan goals. In addition to determining the volume of minority ability districts in each plan, we computed the number of Democratic districts. We then examined the relationship between the change in minority ability districts, from the 2010s to the 2020s, and the change in Democratic districts. Strikingly, there was no consistent link between these variables. Plenty of new maps, many of them partisan gerrymanders, included significantly more or fewer Democratic districts than their predecessors. But some of these maps cut minority representation, some increased it, and most simply left it alone. On the whole, neither Democratic nor Republican line-drawers systematically subtracted (or added) minority ability districts for the sake of partisan advantage.

            Lastly, while our focus here is Section 5, Shelby County left standing the VRA’s other key provision, Section 2. If a series of conditions are satisfied, Section 2 requires jurisdictions nationwide to create more minority ability districts than they currently possess. States formerly covered by Section 5, then, might have been dissuaded from retrogressing by the prospect of litigation under Section 2. If successful, Section 2 suits could have forced these states to restore the minority ability districts they removed. However, this potential deterrent effect shouldn’t be overstated. Section 2 protects only a subset of minority ability districts while Section 5 previously shielded them all. Plaintiffs’ recent record in Section 2 litigation is abysmal. And Section 2 is currently under attack on grounds similar to those that doomed Section 5.

            We want to emphasize that our findings don’t mean that Shelby County had no impact on minority representation. Again, we identified six district plans in formerly covered states that dismantled minority ability districts: Texas’s congressional map, the state senate maps of Georgia, Mississippi, Texas, and Virginia, and Mississippi’s state house map. All this retrogression would likely have been prevented had Section 5 still applied. And more retrogression could occur in the future if line-drawers become less risk-averse or more willing to risk Section 2 liability. We also considered only statewide district plans. But much Section 5 activity historically took place at the local level. Our analysis says nothing about whether, or to what extent, formerly covered municipalities took advantage of Shelby County to slash minority representation.

            Our claim, then, is just that Section 5’s nullification didn’t lead to rampant retrogression (at least, not in statewide district plans). The law now allows formerly covered states to eliminate minority ability districts in many cases. But it turns out the law isn’t the sole—or even the main—driver of retrogression. That title goes instead to nonlegal factors like line-drawers’ status quo bias and pursuit of partisan advantage. For the most part, these factors didn’t impel formerly covered states to disband minority ability districts in the last redistricting cycle. That’s ultimately why we saw little retrogression even though the law would have permitted much more.

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“Non-Retrogression Without Law”

Eric McGhee, Chris Warshaw, and I just posted this paper, written for the University of Chicago Legal Forum’s symposium on Borders and Boundaries, addressing the extent of retrogression in states formerly covered by Section 5 of the Voting Rights Act in the 2020 redistricting cycle. Here’s the abstract:

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance.

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Introducing RPV Near Me

The following is a guest post by Ruth Greenwood, the director of the Election Law Clinic at Harvard Law School:

The Election Law Clinic at Harvard Law School (“ELC”) now offers free access to summary measures of racially polarized voting (“RPV”) for every county in the country. The analysis was conducted by Christopher T. Kenny, a Ph.D. candidate in the Department of Government at Harvard University. All the results are available to view and download.

This project is the latest step in my efforts to promote more and better representation for communities of color in local government. A key policy in this area has been the enactment of state VRAs (SVRAs) across the country. California was first out of the pack in 2002, and in recent years Washington, Oregon, Virginia, and New York have all built on the CVRA in developing their own statutes (with ever more expansive and creative ways for local governments to enfranchise and represent communities of color). As the 2023 legislative sessions begin, I hope and expect to see even more states adopt SVRAs.

I hope RPV Near Me will be a resource for voters, community groups, activists, lawyers, and journalists in states with SVRAs to identify jurisdictions where the electoral system could be improved. I also hope RPV Near Me will be a resource in states considering adopting an SVRA—it should help with the identification of communities that might be better represented through new electoral systems.

The site includes visualizations of the RPV results for a number of recent elections in every county in the U.S. This information can give us a sense of the voting patterns of members of different racial and ethnic communities around the country. The site is not intended to be used in litigation (as all VRA litigators know, court cases also require analysis of endogenous elections); rather, the site should be used to identify trends and potential hotspots. We are exploring adding more data to the site (such as analysis for Asian American and Native American communities, and for cities, towns, and villages). If there is data that might help you seek better representation for communities of color in local government, please reach out to me to discuss.

Overview of the Available Data

Here I show some examples of the types of conclusions you might draw from the high-level data available on RPV Near Me. In Middlesex County, MA (home to the Election Law Clinic), there is little evidence of RPV (except in the Governor’s race in 2018):

While in Jacksonville, FL (where the Election Law Clinic currently represents, among others, the Jacksonville Branch of the NAACP in a racial gerrymandering lawsuit), there is evidence of extreme RPV between Black and white voters:

Currently, the site only offers data for four categories of voters (white, Black, Hispanic, and other). These categories allow you to see where there is evidence that Black and Hispanic voters form a political coalition, for example, in Virginia Beach, VA; and where there is not such evidence, for example, in Miami-Dade, FL:

Finally, there are some places where the minority communities are so small that we can’t get accurate RPV estimates (because the credible intervals are just too large), for example, Aurora County, S.D.:

Data and Methods

The data and methods used for RPV Near Me were provided by:

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Jacksonville racial gerrymandering remedy

Yesterday a federal district court rejected the remedial map the City of Jacksonville adopted in an effort to cure racial gerrymandering violations in its original city council plan. Instead the court ordered the use of one of the remedial maps offered by the plaintiffs (who are represented by Harvard Law School’s Election Law Clinic, the ACLU of Florida, and the Southern Poverty Law Center). Two points are particularly notable about the court’s decision. First, the court held that, in assessing racial gerrymandering remedies, it can be probative to group certain districts. Jacksonville’s heavily Black districts were collectively almost identical in the city’s remedial map as in its original plan, even though each of these districts individually changed quite a bit. That collective continuity helped to show that the original violations hadn’t been fully cured. Second, the court held that reliance on nonracial criteria like incumbent protection and partisan advantage can perpetuate racial gerrymandering if these criteria have the effect of largely preserving the structure of the original unlawful plan. That’s exactly what happened in Jacksonville: to protect incumbents, maintain the original plan’s partisan balance, and avoid disrupting districts that weren’t invalidated, the remedial map had no choice but to closely resemble the original unlawful plan. Some key excerpts from the decision are below:

[T]he vast majority of Black residents living in the Packed Districts under the Enjoined Plan remain in one of the Packed Districts under the Remedial Plan. And, to the extent the City Council did move some residents out of the Packed Districts and into a Stripped District, those residents were disproportionately White. In addition, the shapes of the Remedial Challenged Districts and the core retention data show that the City Council largely left the core of Districts 2, 12, and 14 unchanged while Districts 7, 8, 9 and 10, wedged between them, are significantly reconfigured but largely among themselves. While the City points to the significant changes to the boundaries of Districts 7, 8, 9, and 10, as evidence that the Remedial Plan does not perpetuate the constitutional infirmities of the Enjoined Plan, see Reply at 35, this evidence merely supports what Plaintiffs contend: that White voters largely remain in Districts 2, 12, and 14, and “Black voters are shuffled among—but not out of—the Packed Districts.” . . .

[W]hile the City is correct that it made extensive revisions to Districts 7, 8, 9, and 10, it appears that the City failed to make meaningful ones—it failed to actually remedy the effects of the racial gerrymandering discussed in the Court’s Preliminary Injunction Order. The voice of Black voters largely remains unchanged in that it is still confined to the Packed Districts that were the four historically majority minority districts. It is exceedingly difficult to see how repacking the same Black voters into a new configuration of the same four districts corrects, much less completely corrects, the harmful effects of the City’s decades-long history of racial gerrymandering. . . .

[T]he legislative history unequivocally establishes that the City’s failure to unpack Districts 7, 8, 9, and 10 stems from the high priority the City placed on protecting incumbents and candidates during the redistricting process, and relatedly, maintaining the Council’s partisan balance. . . .

[U]nder the circumstances of this case, the City’s insistence on protecting incumbents embedded, rather than remedied the effects of the unconstitutional racial gerrymandering described in the Court’s Preliminary Injunction Order. . . .

Despite the City’s insistence that its mapmakers started from “scratch,” the mapmakers were constrained from the outset by the need to separate incumbents—oddly including even those who were not eligible or had declared their intention not to run again as incumbents to be protected. By making this factor a priority, even for incumbents who were not able or intending to run again, the City all but guaranteed that the unconstitutional effects of the Enjoined Plan and its predecessors would be carried forward into the Remedial Plan.

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Partisan Gerrymandering Chapter

I just posted this book chapter on partisan gerrymandering, which will be part of the Oxford Handbook of American Election Law (coming out next year). Thanks to Gene Mazo for assembling and editing the volume and organizing terrific workshops for contributors.

This chapter addresses the law and academic literature about partisan gerrymandering: crafting districts with the intent and effect of benefiting the line-drawing party. With respect to the law, the chapter covers the depressing arc of federal anti-gerrymandering legislation as well as the somewhat more encouraging record of state constitutional litigation. The chapter further discusses enacted state and proposed federal redistricting reforms, in particular, requirements that districts be designed by independent commissions. With respect to the academic literature, the chapter surveys four live debates: whether gerrymandering should be conceived in terms of intent or effect; whether the impact of gerrymandering should be assessed using absolute or relative measures; what the main drivers of district plans’ partisan biases are; and how these biases affect broader democratic values. The ongoing contributions to these and other debates show that, while gerrymandering may no longer be justiciable in federal court, it remains an active topic of legal and political science scholarship.

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Eleventh Circuit Purcell Ruling

In the Jacksonville racial gerrymandering case that Harvard Law School’s Election Law Clinic is litigating, the Eleventh Circuit just denied the city’s effort to stay the district court’s decision striking down seven city council districts. This means that Jacksonville will have new — lawful — districts in time for its 2023 municipal election. The Eleventh Circuit ruling is notable for its determination that five months before an election (when the district court issued its decision) is outside the window in which Purcell applies. The Eleventh Circuit ruling also relied on the Supreme Court’s recent decision in Rose v. Raffensberger, rejecting a defendant’s Purcell argument where the defendant had previously represented that there was enough time to implement changes if the plaintiffs prevailed. Here too, as in Rose, Jacksonville initially agreed that a new district map would be feasible if it was implemented by December 16 — only to turn around on appeal and argue for a different timetable. Thanks to Rose and now this ruling, these kinds of ambushes by defendants should no longer succeed.

In League of Women Voters of Florida, we found an injunction to be within Purcell’s “outer bounds” because it was issued while local elections were ongoing, voter registration (which was implicated by the injunction) had begun, and the next statewide election was less than four months away. Id. Here, the district court issued its injunction three months prior to the candidate qualifying period1 and five months prior to the elections for a single county. Applying Purcell to this case would extend the “eve of an election” farther than we have before.

Our decision not to further those outer bounds—at least, not in this case—is bolstered by Rose v. Raffensperger. . . . [Defendants] clearly stated as far back as July 1, 2022, that they would be able to conduct the March 2023 elections if they had maps in place by December 16, 2022. Indeed, the entire schedule on which the district court proceeded was developed with Appellants, working backwards from the date they provided, and the final schedule was accepted “without caveat.” Given Appellants’ position that the election can be conducted on the schedule they made collaboratively with the district court and Appellees, we do not believe Purcell applies here.

And, finally, we find Purcell’s heightened standard is not appropriate because the district court found the primary reason for applying that standard—risk of voter confusion—to be lacking. See Purcell, 549 U.S. at 4–5. Indeed, after conducting an extensive analysis, and recognizing courts should be reluctant to issue injunctions affecting county elections, the district court concluded that Appellants did not show “any substantial risk of harm, confusion, or disruption in the March 2023 election.” We find this determination was not clearly erroneous.

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Census data lawsuit

Harvard Law School’s Election Law Clinic (together with Selendy Gay Elsberg PLLC) filed this lawsuit to compel the Census Bureau to disclose important data about the Bureau’s 2020 products. For the first time, the Bureau used a method known as differential privacy by which random “noise” was added to the raw data. The Bureau then used another algorithm to further adjust the data after the application of differential privacy. This further adjusted data was disclosed to the public; the intermediate data — after the application of differential privacy but before post-processing — was not. It’s this intermediate data whose disclosure the Clinic’s lawsuit seeks. The intermediate data raises no privacy concerns (thanks to the application of differential privacy) but is vital to researchers interested in understanding any distortions or biases in the Bureau’s released 2020 products. Here’s some more information about the matter.

To analyze the potential impact of the 2020 DAS on accurate population demographics, including the effect of post-processing, Dr. Phillips requested access to the noisy measurements file underlying the published 2020 Census data and the 2010 Census demonstration data product. The files requested through the FOIA are important because biases in the data can harm communities’ ability to obtain their fair share of government funding and their ability to enforce their civil rights, including the right to equal political opportunity under the Voting Rights Act. Bias in census data also interferes with academic research in health, public opinion, and many other fields.  Like much of political science research, Dr. Phillip’s public opinion research relies on census data as a key input to accurately characterize population-level estimates. With the planning of the 2030 Census underway, understanding the biases accompanying the Census’s current methods is pivotal to improving the accuracy of its data, ensuring privacy, and promoting civil rights under the Voting Rights Act.

The complaint details that Dr. Phillips is concerned that his research has been harmed because the post-processing phase may have systematically inflated the census-reported populations of sparsely populated and homogeneous areas while shrinking those with greater population density and diversity. This distortion in the 2020 Census would make the data less fit for use in Dr. Phillip’s research while also resulting in an inequitable distribution of political power and resources, likely harming racial minority groups.

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Shapiro, Stephanopoulos & Tokaji Amicus Brief in Moore

Carolyn Shapiro, Dan Tokaji, and I are the amici in this brief in Moore v. Harper, represented by Harvard Law School’s Election Law Clinic. Our brief highlights the doctrinal and practical mayhem that would ensue if federal courts were to suddenly insert themselves into matters of state law, as dictated by the independent state legislature theory. Here’s an excerpt from the brief’s introduction:

Petitioners’ gloss on ISLT provides courts with no manageable standards. Petitioners propose a version of ISLT that limits the application of what they describe as “vague” constitutional provisions. But they offer no clear guidance for how to tell when a constitutional provision is so vague, such that state courts are prevented from ordinary judicial review. The best attempts of their amici to identify a clear statement rule are similarly opaque and would disrupt centuries of state constitutional law.

ISLT is not just a matter of the allocation of power within a state, instead it effects a massive shift from state to federal courts. It undermines the ordinary processes of judicial review and reallocates questions of state law into the federal courts, implicating concerns key to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), particularly forum-shopping and the inconsistent administration of state law.

ISLT threatens to decimate the conduct of elections across the country by effectively creating two sets of rules for administering elections and by destroying legislative delegation. ISLT could even render inoperable the very functioning of election administration systems nationwide.

Finally, ISLT also threatens to federalize election disputes, overburdening the federal judiciary and potentially upending approaches to state statutory interpretation without a clear replacement. And ISLT creates questions about a state legislature’s ability to bind its own hands in regulating federal elections. These ambiguities risk involving the federal courts in fundamental questions of state governmental design—questions that the federal Constitution leaves to the states.

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Jacksonville Racial Gerrymandering Decision

In a lengthy opinion today, a federal court granted a preliminary injunction barring Jacksonville from holding any elections under its newly drawn city council districts. Seven of those districts, the court held, are likely unconstitutional racial gerrymanders: four “packed” districts with Black populations far larger than necessary to comply with the VRA and three “stripped” districts with artificially small Black populations. Harvard Law School’s Election Law Clinic is litigating the case together with the ACLU of Florida and the Southern Poverty Law Center. A good story about the decision can be found here.

The ruling is noteworthy outside of Jacksonville for a few reasons. First, it involves not just packed districts (the usual targets of racial gerrymandering claims) but also stripped districts. The logic of the cause of action has always applied equally strongly to districts intentionally drained of minority voters, but for whatever reason, such districts have rarely been challenged to date. Second, the ruling is among the first in the racial (as opposed to the partisan) context to rely on redistricting simulations. Kosuke Imai’s expert report showed that when city council maps that satisfy all applicable criteria — including the VRA — are randomly generated, the invalidated districts are outliers in their racial compositions compared to the corresponding simulated districts. Lastly, the ruling squarely rejects “core preservation” as a defense, at least when the prior districts were just as racially gerrymandered as the new ones. As Rob Yablon has pointed out, jurisdictions increasingly claim that partisan and racial gerrymanders are actually aimed at preserving the status quo. This court, at least, wasn’t fooled by this specious argument.

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Montana Supreme Court EDR Decision

In a case being litigated by Harvard Law School’s Election Law Clinic, the ACLU, the ACLU of Montana, and the Native American Rights Fund, the Montana Supreme Court affirmed preliminary injunctions against (1) the elimination of election day registration and (2) the elimination of student IDs as a valid form of voter identification. The decision is here and is based on the state constitutional right to vote. An excerpt from the ACLU’s press release is below.

The Montana Supreme Court today affirmed a preliminary injunction blocking a state law that hinders Native American participation in the state’s electoral process. 

The decision upholds a preliminary injunction against HB 176, which had ended Election Day registration in Montana. Native American voters living on reservations in Montana disproportionately rely upon Election Day registration to register and vote. . . .

Plaintiffs have also secured a preliminary injunction against HB 530, a prohibition on paid third-party ballot collection in Montana, and yet another law that disproportionately and severely burdens Native Americans’ right to vote.

Last month, the Montana 13th Judicial District Court held a two-week trial in the case, involving challenges to HB 176, HB 530, and two other voting-related laws challenged by consolidated plaintiffs. The Court is expected to rule on the full challenges to those laws in the relatively near future.

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